Notre Dame athletic director Jack Swarbrick advocated for the NCAA to collectively bargain with athletes after testifying on Capitol Hill in the 10th Congressional hearing on name, image and likeness.
Swarbrick clarified that he was against players being classified as university employees. He suggested giving athletes a special status that would maintain their positions as full-time students at a university, but still allow them to unionize and collectively bargain with a larger entity.
"It's a fairly radical notion, but if we could find a way to reach binding agreements with our student-athletes, most of this goes away," Swarbrick told Yahoo Sports. "We don't have the mechanism to [collectively bargain] without them becoming employees. It would require a new mechanism that would recognize the rights of student-athletes to negotiate for the terms and conditions of their participation as athletes without being employees. I think it's worth considering."
The position is a stark one for Swarbrick, who has served as athletic director at Notre Dame since 2008. It would open the door for players to push for additional rights and protections. However, if done correctly, it could also lead to players signing binding contracts with schools that would limit the transfer portal carousel.
"It would require a piece of legislation that recognizes the rights of students who are athletes to enter into binding agreements with something," Swarbrick said. "There is a challenge here. Are they bargaining with the NCAA or the conference? It can't be school by school. You need some competitive equity."
Senators have repeatedly referred to the NIL landscape as the "Wild West" during questioning. There are few barriers and even less transparency when it comes to payment from collectives. Walker Jones, co-founder of The Collective Association, said that only 20% come from organic deals with outside companies. The other 80% come through NIL collectives.
On the horizon, there are two complaints with the National Labor Relations Board, which could ultimately lead to athletes gaining employment status. Additionally, a lawsuit -- Johnson v. NCAA -- focuses on whether athletes should be subject to minimum wage laws.
Six of the seven college athletics panelists said they were against college athletes becoming employees. However, four were either school or athletic administrators, while a fifth was a head of a collective. Ramogi Huma, executive director of the National College Players Association, said he was in favor of Division I basketball players and FBS football players becoming employees, with Division II and III remaining untouched. It's unclear whether that perspective is representative of athletes across the NCAA.
Pivotal moment
Swarbrick holds a unique place in college football. As Notre Dame athletic director, Swarbrick is given a permanent seat on the College Football Playoff Management Committee, alongside the 10 FBS commissioners. Because of the setup, Notre Dame always has a heavy influence on the structure of the sport.
That said, Swarbrick is also set to leave his post in early 2024. He will be replaced by NBC Sports chairman Pete Bevacqua. Swarbrick's departure is one of many that will significantly impact the future of college athletics. Ohio State athletic director Gene Smith announced that he will retire in 2024, while College Football Playoff executive director Bill Hancock will depart on Feb. 1, 2025. Most recently, Notre Dame president John Jenkins announced that he will step down at the end of the 2023-24 school year. Jenkins serves on the CFP Board of Managers.
College athletics leaders have repeatedly looked to Congress to solve issues. Notably, the NCAA hired former Massachusetts governor Charlie Baker to lead the organization. He was in Washington, D.C., to testify next to Swarbrick, Big Ten commissioner Tony Petitti and a handful of other key stakeholders.
Several senators have put forward legislation on NIL. Two figures on opposite sides of the aisle with ties to college football -- former coach Tommy Tuberville (R-Ala.) and player Joe Manchin (D-W.Va.) -- joined forces to propose the PASS Act. Another former player, Cory Booker (D-N.J.), has worked with Ted Cruz (R-Texas) to craft a bill for the Senate Commerce Committee.
There is no timeline for any of these pathways as Congress focuses on a number of other issues.
